Whaling: Prospects for ICJ success

Success for Australia's legal proceedings against Japanese whaling in the International Court of Justice (ICJ) is by no means certain. Even less certain is the prospect for ending whaling.

For instance, under the 1946 International Convention on the Regulation of Whaling (ICRW), Japan has a fair argument that it is not in breach of its obligations. Under Article VIII, Japan may argue that it alone has the power to determine all conditions of scientific research whaling because it is empowered to grant such whaling permits as 'it thinks fit' – a criterion seeming to admit of almost no limitation.

Moreover, even if the ICJ rules that Japan has abused its rights to conduct scientific whaling under the Whaling Convention, the ruling alone will not end whaling because at some level, scientific whaling is expressly allowed by the Convention (assuming the level is not set so low as to make lethal 'research' whaling entirely non-viable economically).

This, of course, would not be the end of the matter. Australia has alleged a number of Japanese breaches of law beyond the ICRW, and the case would continue on these claims.

At the same time, though, even if Australia prevails on all its other claims, such a victory is not likely to bring a complete halt to Japanese whaling. This is because the other claims made by Australia do not relate to whaling per se, but to impermissible trade and other environmental harm caused by whaling activities. If trade is ended and collateral environmental harm remedied (which could be relatively easily done), then the alleged breaches would no longer remain and whaling could legally continue.

So even a best-case scenario (Australia prevailing on all its claims) is not likely to result in Australia's ultimate objective of ending whaling in the Southern Ocean. The apparent futility must give one pause. The cost of international adjudication is not inconsiderable. More importantly, the case creates friction between Australia and a key trading partner. Is it worth it?

It is difficult to say because the action is not without certain benefits. At a general level, it fosters an international rule of law and surely that is a good thing. If Australia is to be true to its own traditions it should pursue international justice through judicial means. Additionally, if the case is decided on the merits – even if adversely – we will have a definitive legal view from the ICJ on what has been the crux of a decades-long dispute between anti-whaling and pro-whaling states.

One of the great deficiencies in the international legal system is the dearth of authoritative decisions about the meaning of disputed obligations. A binding third-party decision would permit the parties to move beyond an otherwise intractable dispute. This is as it should be.